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בעניין ברכה על הליקוי

ביום שני, ט׳׳ו בשבט תשע׳׳ט יהיה ליקוי לבנה על הבוקר, ויש לשאול האם יש לברך עליו?

השאלה היא בהנחה שעצם ראיית התופעה המרשימה דורשת תגובה, כמאמר השמים מספרים כבוד א-ל ומעשי ידיו מגיד הרקיע. וקבעו חז׳׳ל ברכת עושה מעשה בראשית על תופעות שמימיות כאלה (ברכות ט:ב):

על הזיקים ועל הזועות ועל הברקים ועל הרעמים ועל הרוחות הוא אומר ברוך שכחו מלא עולם. על ההרים ועל הגבעות ועל הימים ועל הנהרות ועל המדברות הוא אומר ברוך עושה בראשית. רבי יהודה אומר הרואה את הים הגדול אומר ברוך שעשה את הים הגדול בזמן שהוא רואה לפרקים.

והרב הלל מרצבך נשאל שאלה זו, והביא נימוקים נגד, אבל בסוף כתב:
״נראה, שאפשר למצוא דרך אחרת לכוון את ההתפעלות ממעשה זה, ולומר פרק תהלים י”ט – השמים מספרים כבוד א-ל, או פרק קד – ברכי נפשי את ה’.״

והראה בעצמו שעצם הטענע נכונה, שלפי המוסר ראוי גם לברך על הליקוי, ורק מסיבה טכנית אין. ותשובת הרמב׳׳ם אליו:

על כל אחד מאלו מברך ברוך אתה ה’ אלוהינו מלך העולם, שכוחו מלא עולם; ואם רצה מברך ברוך אתה ה’ אלוהינו מלך העולם, עושה בראשית.

דהיינו שיש סובייקטיביות בדבר, ובעיני הרואה להחליט.

ועיין בדברי השו׳׳ע או׳׳ח, שהביא דברי המשנה, ומה הצד השווה ביניהם? וכן הדעת נוטה לכלול כל שיש את הצד הזה, אם באמת רשימת המשנה לא ממצה.

ואם תאמר לא ראינו ראיה, ולא ראינו שמברכים על הליקוי, יש לומר דלא ראינו אינו ראיה, ומחלוקת ידועה היא, ויש פוסקים שאינו ראיה.

ולטענותו שאין לחדש ברכה (אורח חיים סימן מו) שלא הוזכרה בש”ס, י׳׳ל דהני מילי גבי ברכות שאינן מוזכרות בכלל, כגון ברכת הנותן ליעף כח וברכת הבתולים, אבל כאן השאלה האם הברכה הידועה מתאימה לנדון בפנינו. למה הדבר דומה? לברכת לגמור או לקרוא את ההלל, שיש מברכים גם בימים בהם קריאת ההלל היא מנהגא בעלמא ובימי ההודאה שנתחדשו בדור הקודם.

והאדמו׳׳ר מלובאוויץ טען שלא נתקנה ברכה על ליקוי המאורות, משום שאין מברכין על סימן לפורענות (שעם ישראל נמשל ללבנה). ואפילו שזו תופעה טבעית, יש בכך תזכורת לחזרה בתשובה.

וקשה, כי מיד אחרי המשנה, איתא בירושלמי: תני בר קפרא מתריעין על הזועות. שמואל אמר אין עבר ההן זיקא בכסיל מחריב העולם. מתיבון לשמואל ואנן חמין ליה עבר אמר להון לית איפשר או לעיל מינה או לרע מינה.

והרי להדיא למדנו שמברכים עליהם, למרות שהם גורמים נזק. וכן פסק הרמב׳׳ם שיש לברך על רעידות אדמה, ״ועל קול ההעברה שתשמע בארץ המו ריחים גדולים.״ ושמעינן שמברכים על התופעות המזיקות והעלולות לגרום לנזק. וצריך עיון.

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Candle Lighting in Jerusalem

See this article by one William Gewirtz. I wrote the following response:

Ockham’s razor is not a completely logical rule, but its is useful. Gewirtz’s theory makes too many assumptions, is too complicated, and is ultimately unsatisfying. I would like to offer an alternative explanation:
1. Accurate clocks were, until the modern era, a privilege of wealthy Europeans.
2. The idea that the day can be divided into 12 hours is ancient, and can reflect the use of the oldest timepiece: the sundial. The method of calculating the hours of the day attributed to Maimonides and the Vilna Gaon can be figured with a sundial and similar devices, and did not need to be explicated until later authorities started including hours before sunrise or after sunset in their halachic calculations.
3. It is also very easy to have a rudimentary sundial indicate the halachic times of Minha G’dola and Plag Haminha. Any opinions that would result in plag haminha being so close to sunset are self refuting, or as the Vilna Gaon would say, “contradicted by the senses.”
4. Boy scouts are taught how to make simple and accurate sundials
5. Anywhere in the world, A sundial will indicate X minutes after sunrise and X minutes before sunset by a shadow of length Y, equivalent to the distance between the center of the sundial and a concentric circle. within the dial, every single day of the year, as long as X is no longer than half the the time between sunrise and sunset.
6. For our case, this means that in Jerusalem, every day of the year, a sundial can easily be made to indicate when 40 minutes have passed since sunrise, and when sunset will be in another 40 minutes. If the people using the sundial so choose, they can draw a concentric circle within the dial indicating a similar length of time before sunset or after sunrise up to 5 hours in length.
7. Further, the same time X after sunrise or before sunset will be indicated twice every day by the height of the sun in the sky. If there are landmarks of the right height to the east and west that mark enough of the horizon, it can be readily known to even the most uneducated observer when 40 minutes remain before sunset. If there is a line of palm trees far to west, and they are all about the same height, and they cover enough of the horizon from the son’s southernmost position at sunset to its northernmost position, then everyone knows that when the sun is at the top of those trees, then it will set in another 40 minutes.
8. 40 minutes is a nice round number that a community and its religious leaders can use if their goal is too find a length of time that allows for the early acceptance of the sabbath so as too show communal resolve to add significantly to the sabbath, but not so much so as to be futile.

The Almost-Invisible European New Moon

This month, the Israeli New Moon Society did not send out the usual charts for spotting new moon from Jerusalem, but they did send out an email with a link to this site, which has some pretty good diagrams indicating where and when the new moon was or will be visible. I have been looking at the site regularly for some years, but this afternoon I found something very interesting. During the summer of 1990, there were months in which the moon was positioned very far to the south of the sky. On August 21, 1990, which was Rosh Hodesh, 30 Av 5750, the new moon was visible in most of Africa and South America as the night began, but in Israel and Europe and most of North America, the moon was not visible until late the following afternoon. On September 9, 1991, the first day of Rosh Hashana, the new moon was already visible across Australia, Africa, and South America, but once again, those In Israel, Europe, and most of North America did not see it until late the next day, and this is remarkable because Australia is well to Israel’s east, and it seems reasonable that if the Australians could see the new moon, then the Israelis should have an even easier time spotting it, being that the moon is almost half a day older, and therefore larger. On December 5, 2002, 30 Kislev 5763, the new moon was at least visible in Israel, but once again., it was not visible in Northeast Europe, in places where the Ashkenazic Aharonim had lived. The true molad, the lunar conjunction, had been the previous day, December 4, at 9:34 am Jerusalem time, while the average molad was almost twelve hours later, 9:06 pm and 13 parts. And the following February, the moon was much harder to see in classical Lita than it was in the Mediterranean basin. All of this helps explain a phenomenon of the halachic literature I wrote about some years ago:

Rabbeinu Yona’s comments at the end of the fourth chapter of B’rachoth describe three ways to understand what Massecheth Sof’rim meant by not reciting the blessing “ad shetithbasseim…” Rabbeinu Yona offers his own mentor’s understanding, and this is the basis for all later misunderstandings: tithbasseim refers to the light of the moon being significantly “sweet,” a state that it only achieves “two to (or ‘or’) three days” into the new lunar cycle. Why the vague language? Because no two months are the same. By the time the moon becomes visible for the first time, it could be that that the molad itself was anywhere from twelve hours to 48 hours to even more or even less before that, and each month has its own set of astronomical conditions that affect this. See this chart. Notice that no two months share a percent illumination, nor location in the sky, and each has its own level of difficulty being spotted. When two days are shown consecutively, it is because the first day’s conditions were not sufficient for most to have actually enjoyed or even seen the light of the moon. The possibilities are endless, and there is no objective rule for determining how much time the moon takes each month to get to the stage Rabbeinu Yonah’s mentor describes, and that is why he used the vague terminology “two to three days.” (As pointed out on the last page of the linked file, Maimonides did feel that there was a mathematical formula for determining minimal visibility.) More importantly, the “two to three days” statement is just an example of how long it takes, but the underlying rule is when the light becomes “sweet…” In languages like 13th-century Rabbinic Hebrew and Modern Hebrew and English, “two to three days” or “two or three days” allow for all of those possibilities. The halacha also allows for that… it seems that in every subsequent work you can find (with the the very important and critical exception of the Beth Yosef), the opinion of Rabbeinu Yona’s mentor is referred to as “Rabbeinu Yona’s opinion,” even though he offered one that actually differed from that of his mentor, and it is inaccurately reported as waiting for three days after the molad, taking out the the critical “two or/to.” Even later, it is further transformed into waiting until after three days have passed, i.e., at least 72 hours. This evolution is clear from reading the sources as they appear in the halachic record in chronological order. This is unfortunate and also illogical, because we saw above that the whole idea of “two to three days” is only offered as a way to describe how long it may take the light of the moon to become “sweet.” It could actually vary, because the sweetness is the point. Rabbeinu Yona did not mean “three days, in every single situation, no matter what,” and even if he had said that the underlying rule is to wait three days from the beginning of the cycle, why did they add that “at least” modifier?

We find that various forms of this practice, delaying Brikath Hal’vana for a day or two after what would be appear to be the ideal time according to the classical opinions in the Talmudim, is mostly an Ashkenazic phenomenon, whereas the generally Sephardic streams advocated Birkath Hal’vana on Rosh Hodesh, or a week later, as per the kabbalistic practice. The fact that in Northeast Europe, the moon was often not visible until a day later than when it became visible in the temperate regions seems to be a good explanation for this feature of the literature. Often, the Jews in Northeast Europe really had to wait for the moon to become barely visible even after the molad calculations indicated it was already well-visible in the places where the sages of the Talmud used to live.

When Rape is Not Rape

My intent in writing this is to defend the laws of our Torah from those who would seek to belittle them. Due to the sensitive nature of the subjects herein, I would like readers to know that they should exercise discretion.

I would like to return to an issue I discussed earlier. Many naysayers, new-agers, anti-semites, reformers, and self-hating Jews point to commandments of the Torah as being unacceptable to our advanced senses of morality and justice, or other such nonsense. 

Recently, I was asked by a student concerning Deuteronomy 22:28-29, the law of the rapist of a virgin na’ara. The rapist pays the father of the girl a fine of 50 silver shekels, and must marry his victim, if that is what she and her father want, and the rapist may never divorce her. A young woman wanting to marry her rapist is repugnant to our modern sensibilities, and should not this whole issue be be dealt with under criminal law and not civil law? (The distinction in common law between criminal law and civil law is sort of paralleled in Talmudic law. A qualified court of ordained Rabbis can try criminal and capital cases, whereas smaller courts are limited to civil cases and less critical ritual cases, ritual cases being a class not judged by western common law.) Indeed, there are some today who make the claim that this part of Torah law is “immoral” or wrong by our enlightened standards. I believe that the only objective morality is that which can be derived from strict adherence to the Torah, and many times such claims are made from a lack of thorough familiarity with the sources. Presently, I wish to defend the Talmudic rules exactly as they are, while making what at first seem to be a surprising argument: The act described in Deuteronomy 22:28-29 is not one that would rightly be called “rape.”

Regarding violent crime: it is clear that in the talmudic-halachic construct, violent crime, including rape and and murder, must be dealt with definitively in every time and place. I believe that this would be clear after reviewing the relevant source materials. The de-evolution of Jewish society in the diaspora and the lack of properly functioning Jewish courts has led many critical segments of classical Jewish law to fall into disuse and intellectual neglect, and even today, battei din do not get involved in matters of criminal law and protecting society from violent offenders (even when they have the rare opportunity), but many should be reminded that according to ideal Tora-law, courts are empowered to deal with violent criminals, even those who are not guilty of capital crimes such as murder. Rape is included in the types of violent crime that must be prevented at all costs and that must be punished in a way that protects society.

Now, the Talmud is clear that lethal force may only be used to save a potential victim from a pursuer who is attempting to murder or to rape one of the ‘arayoth, a forbidden relation (the paradigm case in Deut. 22:25-27, describes the rape of a betrothed na’ara, but the law is applied to any forbidden relation), implying that lethal force may not be used by a rescuer against a pursuer who is “only” trying to injure or wound his victim or rape someone not considered a strictly forbidden relation (e.g. an eligible woman). Although there are rules concerning the various payments that a damager must pay when he has not actually killed someone, it is also clear that if we were to see someone pursuing another with an obvious intent to inflict bodily harm, we are not supposed to take our time to determine if the pursuer is actually trying to kill his intended victim. So too, with regard to a rape in progress, we can not start asking the questions that need to be asked after the fact. Before the fact we do not know of if the pursuer will succeed in murdering his intended victim or just injure him, and therefore we are still supposed to intervene. So too, when we see someone pursuing someone with intent to rape, we really can not assume any mitigating circumstance that would call for bystanders not to intervene. The basic rule of intervention is summed up well by Maimonides (Hoveil UMaziq, 8:12): “where the pursuer is one trying to kill his fellow or for d’var erwa, an [unwanted] sexual matter.” If a court were to hear a case regarding payments from one who purposefully inflicted bodily harm on another, it goes without saying that they would also consider the damager’s continuing threat to society. There are also a number of sections of the Mishneh Torah that describe courts’ and kings’ responsibility to use extra-judicial force to maintain society, which for obvious reasons have not been thoroughly covered in the last few hundred years’ of Jewish halachic codes.

This therefore brings us to the case of the “rapist” who is supposed to marry his victim. Note some unusual aspects: The Talmud considers this as 1. being very similar in circumstance and result to seduction. 2. The Talmud entertains that this is a matter of civil damages and fines, and that it is also possible to overlap with a ritual impropriety because the young woman might be a forbidden relation. 3. The Talmud does not consider the criminal aspect: If he were to have raped anyone not a virgin na’ara,  say a 20 year-old divorcee or widow, wouldn’t this be a matter for the police, or for the court to act in society’s interest in keeping dangerous criminals a safe distance?  

Rather, it must be that the “rape” under discussion is one similar to seduction, what we would call today “pressuring,” a form of psychological coercion. In the case of seduction, the two involved had some sort of relationship prior to the incident in question. Seduction involves the man saying that which the young woman wants to hear in order for him to attain the temporary physical pleasure most healthy men pursue, and the Torah thus obligates him to keep his word, while rape involves similar circumstances, except that she did not want to go all the way. Indeed, there are always those couples that carry on pre-marital relationships while sticking to certain boundaries. It goes without saying that if there were a case of violent rape, or one of a stranger, then the courts would have to do more than just assess fines and conditions of marriage and/or divorce.

Support for this position:

1. Why would Maimonides trouble himself to rule (Na’ara B’thula 1:2): “Who is a seducer and who is a rapist? A seducer does with her will and the rapist against her will.” The Tur quotes these definitions, and the Beth Yosef notes that these are obvious, strengthening the question. We all know what rape is! Rather, this case of “rape” is one certainly unlike standard cases of rape, and is actually more akin to seduction, and must be distinguished from it. 

2. In Netzah Yisrael 11, we see that the Maharal apparently understood this special case of rape this way:

 כשבא הקדוש ברוך הוא לתת תורה על הר סיני כפה עליהם ההר כגיגית שיקבלו תורתו, וכיון שכך הרי ישראל אנוסתו של הקדוש ברוך הוא, ואצל אנוסתו כתיב ולו תהיה לאישה לא יוכל שלחה כל ימיו, ולא כן אצל מפתה. מפני שמשפט האונס כפי מה שהיה המעשה, כי המאנס היה מכריח הבתולה על האישות, וכל דבר שהוא מוכרח הוא מחויב, ולכך לא יוכל שלחה, כפי אשר הוא עושה בעצמו האישות ההכרחי לכך לא יסור כלל. ולכך כפה השם יתברך עליהם ההר כגיגית, להיות החיבור הזה הכרחי, וכל זיווג וחיבור הכרחי אין סלוק והסרה כמו שהוא אצל המאנס אישה. 

When the Holy One, blessed be He came to give the Torah at Sinai, he held the mountain over them like a cask so that they would accept the Torah, and because it was so, Israel is like His anusa (should we really translate this as “His rape victim”?), regarding whom it is written, “he will not be able to divorce her all his days,” which is not the case with regard to a seducer, for the law of “rape” is in accordance with the deed, for the “rapist” forced the virgin into marriage, and anything which is forced is binding, and he therefore can not divorce her, as he himself created the marriage, and therefore can not remove it. Thus God held the mountain over them like a cask, in order to make the bond forced, and any forced match or bond has no end or removal, just like with regard to one who “rapes” a woman.

It is worth reading the Maharal’s words that preceded this paragraph, but the point remains. A man coerces his beloved into intimacy with him in order to create an unbreakable bond with her, and therefore he must live up to that, and that is a parable to how God forced Israel into a relationship with Him.  

I have to thank Rabbi Avremi Raanan for pointing this out to me.

3. The linguistic factor: In the case of actual rape (Deut. 22:25-27, above), the verb used to describe the attack is from the root het-zayin-quf, and is used in other contexts to mean grabbing something to which the grabber is not entitled, or in a completely unwelcome matter, whereas in the subsequent case of “rape,” the root of the verb is tau-peh-sin, which in other contexts indicates grabbing on to to something earned, or in certain cases, in a state of a pre-existing closeness. The Netziv first noticed this distinction.

With regard to Joseph, we read about his master’s wife’s constant advances, and his refusals. In a situation where the context alludes to the fact that his resolve was weakening, (and the sages explicate that,) it says that she grabbed (tau-peh-sin) him by his garment, because they were already alone in the house, and that somehow by running away, his garment stayed with her. It is therefore obvious to us what state his clothes were in for him to have been able to leave them in her hand if he were to suddenly run away. W’hameivin yavin.

With regard to the rebellious son being brought before the elders, the verb used is also from the root tau-peh-sin, because, they are, after all, his parents.

When Samuel came to rebuke Saul and deliver the message that God had rejected him as king, Samuel turned to leave, and apparently one of them tried to grab the other’s garment, ripping it. Which ever way you interpret this, the verb used is from the root het-zayin-quf, in an unwanted manner, meaning that Saul attempted to detain the upset prophet, or that the prophet was driving home the severity of his harsh prophecy of rejection by forcefully destroying the king’s robe with his departure. However, when Ahijah was speaking in confidence to Jeroboam, delivering the news to Jeroboam that God would make him king, it says that he grabbed hold of his new garment (tau-peh-sin), and ripped it. Once again, it is unclear whose garment was ripped, but in either case, Ahijah was in a situation where the social clues would permit him to grab hold of the garment, and the tell-tale root word is used.

A possible objection:

Returning to Maimonides’s initial formulation, earlier, we find a potential difficulty with the interpretation I have offered (ibid., 3): 

Whenever a man entered into relations with a woman in a field, we operate under the presumption that he raped her, and apply those laws unless witnesses testify that she entered into relations with him willingly. Whenever a man enters into relations with a woman in a city, we operate under the presumption that she consented, because she did not cry out, unless witnesses testify that she was raped – e.g., he pulled out a sword and told her, “If you cry out, I will kill you.”

This seems to indicate that at least according to Maimonides, the “rape” under discussion is one that we would rightfully call rape. However, a closer reading indicates that Maimonides is not saying that this is a case of ordinary rape, but rather that the assumption of consent in seduction is so strong in this case, when the act was in a city, that we require a very high burden of proof to prove coercion. (See also Ra’avad’s objection to this very formulation: we should not make legal assumptions in such cases, but rather follow the testimony of witnesses, and once again if we were dealing with legitimate violent crime, this would not be a mere civil case.)

Q&A: Jewish Names

Question: The other day, I heard a lecture about how parents are not allowed to give children non-Jewish names. What’s that all about?

Answer: I am hard-pressed to find a definition of such a thing. What makes a name particularly Jewish or not?

Question: Perhaps a name that is not Hebrew or not in the Tanach?

Answer: Many great Jewish people have had non-Hebrew and non-Biblical names.

Question: So is there anything that is actually prohibited?

Answer: Fabricating prohibitions is prohibited. But for the sake of clarity, I will give some background. The Midrash says that the Israelites in Egypt maintained three distinctive aspects of their native culture: their dress, their language, and their names. Now, although some romantics take this to mean that the Israelites did not learn to speak Egyptian, and only named their children “traditional” Hebrew names, that would be farfetched, for we know that Moses and other Hebrew leaders spoke in front of Pharaoh, and probably not in Hebrew, and that no less than Aaron and his grandson Phinehas had names that are certainly not Hebrew in origin, and more likely Egyptian. Rather, the Midrash is saying that the Hebrew ways were not forgotten, and were maintained despite the adoption of Egyptian mores. Later in history, the sages remarked that certain names, like Lucas and Lous, were simply not borne by Jews (Gittin11b), but they did not mention any prohibition of any sort. The fact is that when our people were in Egypt, they sometimes named their children in Egyptian, and when they were in Babylon and Persia they named their children in Aramaic and Persian, and in the west, sages of the Talmud had names that were meaningful only in Greek and Latin. Yet, in Medieval times we find that there were those who decried the adoption of new names, while others made claims that al pi qabbala, or out of voluntary piety, non-traditional names should not be adopted. The halachic burden of proof rests on those who would claim that an actual prohibition exists. However, parents should also be wise: a Jewish child may encounter unnecessary challenges in life if he has a name that is weird. On the other hand, names can be a source of familial and national pride, and carry a transcendent significance that should be appreciated by parents.

Question: A couple named their child Hallelujah, pronounced Hal-le-lu-YAH. Is that a muttar name? Are we allowed to pronounce it or write it as it is spelled in Hebrew?

Answer: The name in question is no different from any other theophoric name the Hebrews/Israelites/Jews have been using for millennia, and of course is permissible to be given as a name, to be pronounced, and to be written as is, without modification. I personally think it a beautiful name for a child, and imagine the parents wanted to express a profound and lasting gratitude for their God-given child.

Question: But doesn’t it have part of Hashem’s name, which should not be said, or which must be buried if written?

Answer: It certainly has part of God’s name in there. That’s what theophoric names are! Hundreds of names use either el or yah as a prefix or suffix, and is there nothing wrong with that. Elhanan, Hananel, Yohanan, and Hananiah are variations of the same name, as are Yehoshua, Yeshayahu, Elisha’ and Sha’el. No one ever thought that those names could not be pronounced as written, or that they attain a measure of sanctity when they are written. The only major difference is that when yah is the suffix, the hei is completely silent, as opposed to pronounced. In the word hallelujah as it appears in the Psalms, the final hei has a mappiq, making it the closing, pronounced consonant, but in the given name Hallelujah, like other theophoric names of its kind, the final hei is silent, and has no mappiq.

For a while, I was thinking about how it seems that before Moses, the Hebrews only used el as the theophoric factor in their names, and that Moses, by creating the name Yehoshua from Hoshea, was setting a precedent, namely that part of God’s proper, unique name could also be used for naming people, and than I realized that it was actually Moses’s mother, Yocheved, who bears the earliest known name of that kind. I checked some sources, and found that the Daat Mikra notes this phenomenon, and conjectures that the matter was kept in secret tradition by Levi, her father, and that Moses, who was first to whom God made His true name known, (See Exodus 3:13-15 and 6:2-3) revealed the permissibility by his own actions, and according to one Talmudic view, the first Yehonathan in history was his grandson (Judges 18:30).

On the Biblical Morality of Genocide: a Response to Rabbi Lopes-Cardozo

The following excerpts come from a recent interview with Rabbi Lopes Cardozo:

One of the areas where Dutch-Israeli Orthodox rabbi, philosopher, and Jewish scholar Nathan Lopes Cardozo differs from the Orthodox mainstream is the Torah’s commandments to annihilate whole peoples, such as the nations of Canaan and the mythical nation of Amalek, God’s proverbial enemy.

Rabbi Dr. Nathan Lopes Cardozo: I believe that in the case where moral issues come up, there, even where the Torah says that we have to annihilate these people, whether it is Amalek or the nations of Canaan, my feeling is that these were challenges given to Moses and the people to see how they would react, in the same way as Abraham reacts in the case of Sodom and Gomorrah.

Indeed, I believe that is the case with every commandment. But I disagree with him regarding what would be the proper reaction.

God says, I’m going to wipe them out, and Abraham responds: Will the Judge of the world do such a thing? And God responds by saying, You have a point, let’s see what we can work out. And then you get this incredible dialogue, between Abraham and God on how many righteous people you need so He will keep the inhabitants alive… I think that should be the point of departure whenever we discuss moral issues in the Bible, related to our fellow man. There my feeling is that even when the Torah sometimes comes with requirements which are problematic from a moral point of view, that we have the option or even obligation, like Abraham, to say to God: Sorry, this won’t go with us. And my reading, which I understand is controversial, is that God is challenging these people: Let Me see how they’ll respond. Did you, people, understand My larger picture of righteousness? Are you understanding what I’m trying to say ? And as I did in the case of Abraham, when I challenged him by telling him I’m going to destroy Sodom and Gomorrah, and Abraham correctly said, No, or at least he was willing to fight it, so I hope and expect you do as well whenever I want you to annihilate people.

Some critical distinctions must be drawn at this point: Abraham was not commanded to destroy the Sodomites, but Israel was commanded to wipe out the Canaanites and Amalekites. Perhaps, if Abraham were to have been commanded to wipeout the Sodomites, he would have submitted to God’s will just like he was willing to sacrifice his own son! Conversely, if the Israelites were told of God’s intentions, so to speak, to wipe out the Canaanites or Amalekites, perhaps they should have intervened in prayer, just like Abraham did on behalf of the Sodomites.

Consider: When Moses was informed that the people had sinned with the Golden Calf, and that God was going to annihilate them, Moses understood that he need to intervene with prayer, as Rashi brings from the Midrash:

He opened a door for him and informed him that the matter [indeed] depended upon him [Moses], that if he [Moses] would pray for them, He [God] would not destroy them.

Yet when Moses returned to the camp, he did not hesitate to fulfill God’s commandment to punish the evil doers:

So Moses stood in the gate of the camp and said: “Whoever is for the Lord, [let him come] to me!” And all the sons of Levi gathered around him. He said to them: “So said the Lord, the God of Israel: ‘Let every man place his sword upon his thigh and pass back and forth from one gate to the other in the camp, and let every man kill his brother, every man his friend, every man his kinsman.’ The sons of Levi did according to Moses’ word; on that day some three thousand men fell from among the people.

Moses thus teaches us that when he hear that others are slated for destruction, the proper reaction is to pray for them, but when we are commanded to be the agents of destruction, we must do so with alacrity.

Rabbi Lopes Cardozo continues:

We see this reflected in the sages’ opinion that these nations no longer exist and by doing so they declared these laws inoperative.

It was Maimonides who said so, but only because of a technical reason. Incidentally, he also rules that one who passed up an opportunity to kill a Canaanite has annulled a positive commandment.

Interviewer:  And yet shortly thereafter, God tells Abraham to execute his son Isaac, and gives him kudos for the fact that he tried to comply.

NLC: I am of the opinion that Abraham, by being prepared to do so, to sacrifice his son, failed the test. I think that the reading of the binding of Isaac should be different from the conventional approach as some chassidic texts indeed seem to suggest . For an excellent overview read: The Fear, the Trembling and the Fire by my dear friend, Professor Jerome (Yehudah) I. Gellman, published by University Press of America in 1994.

This is an issue that gets the Kannaim all riled up. There may be some basis for this approach in esoteric Hasidut, but it is very far from the p’shat, and the traditional understanding of the authors of the prayers, who believed that we should invoke the merit of the binding of Isaac in our prayers.

There are all sorts of psychological issues which take place after the incident with the binding of Isaac, which seem to mean that God was not so pleased with the outcome, even though He says, Now I know that you have fear of Me, but that may have a different meaning. It may even mean something like, now that you went for it, you showed you had the correct intentions, but you got My message wrong.

I believe that these points require much more proof before being admitted for consideration.

But keep the following in mind, I only suggest such a reading when speaking about moral problems, but when you speak about Shabbat, holidays and other mitzvot, where there are no issues between the individual and his fellow man, there we do not have the right to say, we’re changing the commandments or refusing to accept these laws because they’re not convenient.

This would be very controversial and almost scandalous. Why are our (i.e. his) temporarily fashionable moral tastes capable of over riding certain commandments? If we are talking about commandments between God and man, we can change or refuse to accept the laws because they are not convenient?! Perhaps this privilege existed in previous eras? Perhaps it would be better for us to derive our moral sensibilities from Torah and its commandments, instead of trying to change or refuse those commandments based on some other moral system.

What was it that Shaul did wrong, and why did God object to it? It seems that Shaul was more concerned with the animals he had acquired and kept alive than about the people he had killed. There is where the moral failure lies.

An exceptional understanding. Samuel himself criticizes Saul for not fulfilling God’s command. Once again, it was very clearly their responsibility as the leaders of the Jewish people to do as God had instructed.

It seems that Shmuel was of the opinion that Agag was liable for the death penalty. This is a very complicated story. I don’t think that Jewish tradition is always consistent, very often it is not. And I think there’s a reason for that, because it shows different sides of a very complex situation… There is no such thing as black and white responses to these sorts of issues, and I think that plays a role in Jewish law as well. We have to deal with clashing Jewish moral forces.

There are reasons to annihilate Amalek and there are reasons why not to do so, especially when it comes to their women and children. (I even wonder whether this really happened since there are sources that Amalek is a theoretical concept and  not a physical reality.) But because there’s this tension of how you look into the story, which is purely subjective, therefore in the end you will have to find a way in-between. Shmuel is right and wrong at the same time. God says to him, Shmuel, I understand your point of view, I will let you get away with it. But don’t think that this is the ideal outcome.

In order to respond to this, I will quote extensively from something I wrote years ago:

Many naysayers, new agers, anti-semites, reformers, and self-hating Jews point to the anti-Amalek commandments as a form of what they believe to be “Old Testament barbarity,” or other such nonsense. Worse, they point to Rabbi Soloveichik’s conceptualization of the eternal Amalekites, an idea that can be found throughout the Orthodox and right-wing world, as a prime example of modern-day religious belligerence. In an ironic new form of the Blood Libel, they wish to believe that some traditional Jews are just itching to paint some perceived enemy as an Amalek, and thus deserving of annihilation.

This could not be farther from the truth. Rather, as every rational person knows, the Jews would be the last people on earth to commit genocide or ethnic cleansing. For their God’s sake, most Jews would not even fight to save their own lives, both on the personal and national level, if they had any say in the matter. In actuality, those few who appear every few centuries, Jews who actually stand up and defend themselves and their people, or who preemptively attack those who would destroy them, are “embarrassments.”

Consider the following: The Torah commands Jewish men to be fruitful and multiply, and according to Maimonides, there is an additional commandment to marry. Now, most normal men would pursue the opposite sex even if there were no such commandment(s), but there was (and to a lesser extent still is) an ascetic school of thought within Judaism that sexuality and sensuousness would best be avoided, and this indeed spawned Christian monasticism. Perhaps great men like Maimonides and the Vilna Gaon would have chosen celibacy as an ideal. As they say in Aramaic, qa mashma lan, that is why the Torah teaches us that there is such a commandment, because had there not been such a commandment, the pious would perhaps have chosen abstinence.

The same is true with regards to the commandments concerning self-governance and warfare. Most normal nations and societies do not have to be ordered by their God to maintain standing armies for their defense, or to attempt to neutralize alien threats, because such things are obvious! The Americans and Russians and Bulgarians have no second thoughts about using force to protect themselves. Not so the Jewish people, who by nature are “merciful, shy, and kind.” Everyone knows that the people of Israel, if they could, would never fight their enemies if they had a choice. (There are some historical exceptions.) Thus, God, in His wisdom, bade us to 1. make defensive wars when necessary, what is referred to as one type of milhemeth mitzwa, 2. fight against those who would prevent us from controlling our homeland, what is termed the war against the Canaanite nations, and 3. preemptively eliminate those who are openly plotting our destruction. The original commandment of destroying Amalek, when it was unanimously operative, was directed against a people who posed a clear and present threat to our people, and would spitefully have risked their own lives just to harm ours. The Amalekites of Saul’s day were not the innocent descendants of the one’s who attacked our people centuries before that. “And Samuel said: As thy sword hath made women childless, so shall thy mother be childless among women. And Samuel hewed Agag in pieces before the Lord in Gilgal.” (I Samuel 15:33) Agag and his people were killers.

For some reason, there is an insidious double standard at play whereby it is considered wrong for any Jew or Jewish entity to consider fighting back against his or its enemies, and it is the greatest wrong to actually act. In defense of those militant “religious extremists” and “settlers” who supposedly venerate Baruch Goldstein, we should point out that despite the fact that politically correct Jews like to say that they honor him for rising up against the Amalekites, it is not so. They honor his memory as one who intervened and prevented a planned and organized pogrom against the Jewish community of Hebron and Kiryat Arba that Purim, a fact that has been conveniently eliminated from the “correct” historical record so that the misguided amongst us can maintain their myth of The Jewish Terrorist and the “cycle of violence.” Since Goldstein was killed in the act, he has never been given a fair trial, and the embarrassed Jews are still desperately seeking some new boogieman because the last Jewish terrorist, Jack Teitel, has already been put away for life. They latch on to some Rabbis or politicians who have enough common sense to merely identify those plotting the next Holocaust, and then cry extremist. Their willful ignoring of the issue only serves to further endanger themselves, because there are no Jews, nor has there been of late any Jews, seeking to “wipe out Amalek.”

It is also at this point worth considering that the prophets fault the Jewish people for not fulfilling the commandments to get rid of the Amalekites and the Canaanites. We never got it right because we do not want to fight.

Rabbi Lopes Cardozo continues:

Under human circumstances we have to wipe out these people of Amalek, they are very dangerous, even in the future, and at the same time we have to keep them alive because who can say that all of them will be evil?  Some may study Torah in Bnei Berak… Jewish Law discusses the question of what to do in case an Amalekite wants to become Jewish, and several authorities believe that we have an obligation to convert him as long as he has no blood on his hands!! The Talmud in Gitin (57b) and in Sanhedrin (96b) makes the observation that the grandchildren of Haman, the Amalekite, were studying in the Beth Midrash in Bnei Berak. This observation is most telling. It shows the ambivalence of the Jewish tradition towards its arch enemy. Shall we really annihilate this nation and its children? See what happened to its descendants!!! They were great Talmudic scholars!

Indeed, Maimonides and Nahmanides both point out that before waging war, an overture for peace must be initiated, and if the enemy accepts our terms as dictated by the Torah, even if they be Canaanite or Amalek, they are spared, but this says nothing about those with whom we enter into war. Once that is initiated, they are doomed.

 

Maimonides and the Jerusalem Talmud

Maimonides would often rule like the Jerusalem Talmud over the Babylonian Talmud. This is mentioned by the Maharik, mark 100, and Bei’ur Hagra to YD 63:1, but is also seen from a thorough analysis of his writings.

In Otzroth Hagra, Rabbi Zuriel brings the Taklin Hadtin’s intro to Sh’qalim mentions the Bei’ur Hagra to OH  386:16 as an example of the Vilna Gaon  holding like the JT, and against the Rif and the Rosh. Rabbi Bar Hayim has a number of shi’urim with more examples of how both Maimonides and the Vilna Gaon believed in what he calls Torath Eretz Yisrael, i.e. treating the JT as a halachic source equal to or greater than the BT. I have tried to mention in the past that Rabbi bar Hayim’s methods attempt to mimic those of the Vilna Gaon, to objectively analyze every issue from the primary sources without being biased toward precedents.

So what to make of this line from the introduction to the Mishneh Torah?

ודברים הללו בדינים גזירות ותקנות ומנהגות שנתחדשו אחר חיבור הגמרא. אבל כל הדברים שבגמרא הבבלי חייבין כל ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמי הגמרא ולגזור גזירותם וללכת בתקנותם.

Touger translates this as follows: 

These [principles apply regarding] the judgments, decrees, ordinances, and customs which were established after the conclusion of the Talmud. However, all the matters mentioned by the Babylonian Talmud are incumbent on the entire Jewish people to follow. We must compel each and every city and each country to accept all the customs that were put into practice by the Sages of the Talmud, to pass decrees paralleling their decrees, and to observe their ordinances…

and then adds his own idea, one shared by many:

Perhaps by specifying “the Babylonian Talmud,” the Rambam is alluding to the halachic principle that whenever there is a difference between the decisions of the Babylonian and the Jerusalem Talmuds, those of the Babylonian Talmud are followed.

But that is not the case, as we will see. Maimonides continues:

הואיל וכל אותם הדברים שבגמרא הסכימו עליהם כל ישראל.

In the Maqbili edition, the word Talmud appears instead of Gemara. As if attempting to strengthen his case, Touger adds something telling in his translation:

“since all the matters in the Babylonian Talmud were accepted by the entire Jewish people.”

However, Maimonides also wrote in his introduction:

Also, [the sources mentioned above] relate those matters which were decreed by the sages and prophets in each generation in order to “build a fence around the Torah.” We were explicitly taught about [this practice] by Moses, as [implied by Leviticus 18:30]: “And you shall observe My precepts,” [which can be interpreted to mean]: “Make safeguards for My precepts.”

and:

From the entire [body of knowledge stemming from] the two Talmuds, the Tosefta, the Sifra, and the Sifre, can be derived the forbidden and the permitted, the impure and the pure, the liable and those who are free of liability, the invalid and the valid as was received [in tradition], one person from another, [in a chain extending back] to Moses at Mount Sinai.

Therefore, taking all of these together, we realize that what Maimonides means is as follows: All of the written records of the Oral Law are equally authoritative, because they are all from the sages, and the last of those written records is the BT. Why does he emphasize that? One might have argued that the BT would be superfluous because the JT is sufficient. Maimonides thus teaches us that the BT is authoritative, but not later records, like the “Minor Tractates,” which can be disagreed with or discounted, and which Maimonides himself did not treat like the Talmudim, etc.